12 March 2022

The military action by the Russian Federation in and against the Ukraine is a flagrant violation of international law. It harms and threatens the lives and security of millions of people and puts in question the stability and functioning of the whole multilateral system created after World War II to maintain peace and solve problems through international cooperation. The international community’s efforts to address climate change will be thrown back at various levels. So how can the parties to UN Framework Convention on Climate Change (UNFCCC) and/or the Paris Agreement collectively respond?

There is no provision in the UNFCCC or the Paris Agreement that would allow parties to expel Russia, suspend its membership or ban representatives from participating in meetings. This is different under other international treaties such as the 1949 Statute of the Council of Europe. Under Article 8 any member state that has seriously violated its fundamental obligations under the treaty may be suspended from its rights of representation, requested to withdraw and if it does not do so, the Committee of Ministers can decide that it ceases to be a member of the Council from a certain date.¹

As there are no specific provisions in the UNFCCC and the Paris Agreement the general rules under the 1969 Vienna Convention on the Law of Treaties (VCLT) apply.² Here Article 60 paragraph 2 inter alia states that a material breach of a multilateral treaty by one party entitles the other parties to suspend the operation of the treaty (in whole or in part) in relation to the defaulting state by unanimous agreement. To do so the action by the Russian Federation must have violated “a provision essential to the accomplishment of the object or purpose of the treaty” (Article 60 paragraph 3 VCLT).

Relevant provisions in the UNFCCC could be the commitment to protect the climate system for present and future generations (Article 3 para.1), to cooperate to promote a supportive and open international economic system (Art.3.5) or to take measures on the mitigation of climate change (Art.4.2(a)). Because of the rather general and vague nature of these norms, however, legal arguments could swing both ways and parties may, to the extent possible, also have to utilize the dispute settlement procedure in Article 14 as “lex specialis” (Art.60.4 VCLT) first.³ Finally, the decision to suspend the operation of the UNFCCC in relation to the Russian Federation would require unanimity by all other parties.

Under their Draft Rules of Procedure, the Conference of UNFCCC parties (COP) could refuse to accept the credentials of the representatives of the Russian Federation (Draft Rule 21).⁴ Such a decision could be taken by consensus which, according to the previous practice of the negotiation process, does not require unanimity but only the absence of (significant) stated objections. The accreditation process aims to verify that parties’ representatives at a meeting have been properly authorized by the competent government authorities – namely the Head of State/Government or the Minister of Foreign Affairs (Draft Rule 19).

In the early 1970s the UN Assembly consistently declined to accept South Africa’s credentials and, in this way, sought to exclude the apartheid regime from participating in the work of the UN. Since, however, the formal authorization of the South African representatives was in order, many lawyers held that their exclusion from the General Assembly was illegal. But who knows whether the Russian Federation will even send a delegation to the next climate conferences? And if not, it will be easier to agree on some (compromise) text to condemn the action by the Russian state in a COP decision.

1 A decision to suspend the Russian Federation from its rights of representation in the Committee of Ministers and in the Parliamentary Assembly was adopted on 25 February 2022.
2 Russia acceded the Convention on 29 April 1986. It is generally accepted that the Convention reflects rules of international customary law.
3 The law governing a specific subject matter (lex specialis) overrides a law governing only general matters (lex generalis).
4 The draft rules of procedure were never adopted (because of disagreements about voting) but are consistently applied (with the exception of the contentious provisions) during meetings of the parties.

9 December 2021

The annual international climate conferences – usually referred to as COPs – appear to follow a common and by now predictable script: First, there is general acknowledgement of the crisis, hope and expectations. Then comes a bit of drama with an outcome that is generally portrayed as a compromise and – because parties do not walk out on each other – a kind of “happy ending” with, of course, further important work to start immediately. “After the COP is before the COP.”

This was pretty much the same in Glasgow. Despite the effective exclusion of civil society as well as some smaller developing country parties from parts of the conference and bad logistical arrangements for the average participants, the world media generally succumbed to PR narrative managed well by the hosting UK government. At the beginning of the conference the focus was on the climate emergency. Different groups of countries agreed an unprecedented number of new policy instruments and projects – also involving businesses, funders and other non-government stakeholders. This included a declaration on forests and land use, a pledge to reduce methane emissions, the “Glasgow Breakthrough” on green technology, initiatives on agriculture (“AIM 4 Climate”), aviation (International Aviation Climate Ambition Coalition) or access to clean energy (“One Sun One World One Grid” – seriously?) as well as the “Dhaka-Glasgow Declaration” on support for the most vulnerable countries.

Meanwhile in the official inter-governmental negotiations fundamental issues that divide the parties but are key for the success of the Paris Agreement (PA) were either ignored or badly concealed by diplomatic language: Where is the new and predictable finance for climate change adaptation and mitigation in the Global South? If and to what extent does the UNFCCC definition of developed and developing country parties still apply under the PA? When do early industrialized countries accept responsibility for current loss and damage caused by climate change? How can the “global goal on adaption” be relevant in practice? How much longer will fossil fuel companies be allowed to participate in the meetings? Is the ambition in parties’ nationally determined contributions a fair reflection of their capabilities? If some countries cannot be carbon neutral by 2050 who goes carbon negative? And so on and so forth. But despite these substantive differences, after a day of extra time and some nail-biting, ministers from around the globe “hammered” out another deal. Job done, till next time….

Nevertheless, the decisions adopted (or not) in Glasgow – which includes three covering decision by the governing bodies of the UNFCCC, the Kyoto Protocol and the PA termed the “Glasgow Climate Pact” – reflect many of the contentious issues at least “between the lines”. To tackle at least some of them head on could have shown that states are really willing to “do things differently”. Something promised by probably all governments during the global pandemic. For an alternative – but purely fictional – approach in this context see: https://secure.avaaz.org/campaign/en/cop26_peoples_climate_deal_11/?fpla

So – maybe apart from the extreme visibility of sponsors – the climate conference in Glasgow was business as usual. The US returned to the fold and via a string of senior current and former government officials immediately attracted much of the limelight again. The way, however, John Kerry (the presidential climate envoy) laid into China (without calling it by name) for failing to attend the so called “Leaders Summit” and not taking climate change seriously was simply self-righteous and arrogant. Returning to the process with some humbleness could have been another sign (to do things differently). But for a proper assessment of the geopolitical ins and outs of the conference see: https://www.zero.cam.ac.uk/stories/dr-joanna-depledge-reflections-glasgow-cop-26-beyond-headlines

To the extent possible, we stay clear of the political wrangling and focus on providing independent legal assessments. In connection with the Glasgow climate conference we worked on advice related to, for example, the common timeframes (under Art.4.10 of the Paris Agreement), the overlapping mandates of UNFCCC governance bodies, the functions and institutionalization of the Santiago Network on Loss and Damage, the global goal on adaptation (in Art.7.1), compared the different iterations of the draft decision text on Art.6, and analysed the EU’s proposal for a carbon border adjustment mechanism. The requests for assistance came predominately from African delegates (22), 9 from Asia and 2 from Latin America. In addition, we supported 5 civil society organisation and distributed hundreds of guidebooks on the Paris Agreement.

While we do not promote positions, it can be a little frustrating to see how towards the end of a climate conference the proposals of small, particularly climate vulnerable countries are usually watered down or completely disappear in the final versions of the text. All our advice, however, remains available via the LRI data at https://legalresponse.org/legal-assistance/ And for those still wondering whether the negotiations under Article 6 on market approaches had a “happy ending” – read the article by LRI expert David Rossati in Climate Law: https://brill.com/view/journals/clla/11/3-4/article-p298_298.xml

9 November 2021

There is a team of LRI lawyers in Glasgow that provide hands-on legal support to delegates from poor and climate vulnerable developing countries. While the media focus on big political announcements and the various celebrities that visit the conference, climate negotiators are more concerned with the unresolved technical issues for implementing the Paris Agreement.

Delegates have, for example, asked us to compare different iterations on the draft decision text on carbon markets, about the EU Commission’s proposal for a carbon border adjustment mechanism, the best fit of common timeframes for NDCs into the wider reporting framework of the Paris Agreement, how the governing bodies of the Convention, the Kyoto Protocol and the Paris Agreement (COP, CMP and CMA) relate to each other or for suggestions on the “operationalization” of the global goal on adaptation.

The LRI volunteers during the first week of the conference were Caroline Mair, a lawyer (solicitor) from Trinidad & Tobago, and Korey Silverman-Roati, the current Climate Law Fellow at the Sabin Center at Columbia University. In the second week the volunteers are: Sarah Hill-Smith, at trainee at Clyde & Co, Daniela Morich a French qualified lawyer with a government and commercial law practice background and Jule Schnakenberg, a law student at Aberdeen university and member of the World Youth Climate Justice Team.

They talk to negotiators and forward their legal questions (if any) to our experts from universities, law firms and barrister chambers. In addition, they have helped us to distribute over 500 copies of our guidebook on the Paris Agreement at the conference. The content of the guide is also available as an App that has now been downloaded to 75 Android and over a hundred Apple phones.

7 October 2021

In the lead-up to the climate conference in Glasgow, LRI has published two new briefing papers. Authored by two lawyers – one from the Global South, the other from the Global North, both with long-standing experience in the international climate negotiations – the papers address two issues that are of particularly important for the future implementation and the success of the Paris Agreement: compliance and the treaty’s goal on finance flows.

“Strengthening the compliance system for Nationally Determined Contributions” assesses the strengths and weaknesses of the current architecture of the oversight mechanisms of the Paris Agreement (under Articles 13 to 15). The Paris Agreement is primarily based on voluntary actions and good faith, but the flexible ‘bottom-up’ approach may not assure the necessary compliance to achieve lasting change. The paper suggests multiple ways to strengthen compliance domestically, within the Paris Agreement itself, and beyond to ensure that parties meet their emission mitigation targets.

The second briefing paper, “The Paris Agreement goal on finance flows”, addresses one of the three goals in Article 2 of the Paris Agreement. In addition to meeting the temperature goal and enhancing adaptive capacities, the treaty also aims to strengthen the global response to the threat of climate by “making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development” (Article 2.1.c).

The paper provides a comprehensive analysis of where and how finance flows are currently taken into account under the Paris Agreement, such as parties’ NDCs or Article 9.5. It identifies existing gaps, technical options to further develop the Article 2.1.c goal and highlights a range of national and transnational initiatives that should inform future decisions by the parties to the Paris Agreement.